Barry v. Unemployment Insurance Appeal Board

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

KATHY ANN BARRY, :
: C.A. No.: K25A-02-001 JJC
Appellant, :
:
v. :
:
UNEMPLOYMENT INSURANCE :
APPEAL BOARD and AT HOME :
INFUCARE, LLC., :
:
Appellees. :

Submitted: June 6, 2025
Decided: August 14, 2025

ORDER

On this 14th day of August 2025, having considered Appellant Kathy Ann
Barry’s appeal of the decision of the Unemployment Insurance Appeal Board
(hereinafter, the “Board” or “UIAB”), the parties’ briefing, and the UIAB’s record, it
appears that:
1. Ms. Barry appeals the UIAB’s determination that she voluntarily left her
employment with At Home Infucare LLC (hereinafter, the “Agency” or the
“Employer”) without good cause. The UIAB found that she voluntary resigned and
was thereby disqualified from receiving unemployment insurance benefits.
2. The facts of record are undisputed. They derive from the Appeals Referee
hearing below and the additional evidence presented directly to the UIAB during the
appeal of the Referee’s decision. The record demonstrates that Ms. Barry worked part

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time for the Agency as a “consumer direct chore aid.”1 In that capacity, she earned
approximately $14.50 per hour as a live-in caretaker for a single client.2 Her
approximately five-year employment with the Agency began when she brought her
client with her to the Agency under the Medicaid Consumer Directed Care program.3
Medicaid dollars funded Ms. Barry’s position under that program.4
3. Ms. Barry had acknowledged in writing that her employment with the
Agency was “contingent on the continuity of a service relationship with the client.”5
In other words, her employment was based on the client’s continued choice of her as a
caretaker.6 Nevertheless, the Agency served as Ms. Barry’s “Employer of Record.”
To that end, the Agency provided Ms. Barry and the client financial and administrative
support.7 The Agency also furnished the client with a registered nurse to provide
medical care on a regular basis.8
4. Ms. Barry alleged in both the Referee hearing and the UIAB hearing that
the client, who was an alcoholic, became physically abusive.9 Furthermore, she
contended that others living in the home used cocaine and engaged in illegal
activities.10 She alleged that when she brought these circumstances to the Agency’s
attention, the Agency did not help her. In response, the Agency’s representative, who
testified at both hearings, provided evidence that the Agency offered her additional
training toward placement in another home with a new client.11 That newly offered

1
Tr. of Ref. Hr’g at 9:2 [hereinafter the Court will refer to the Board’s certified record as “R. at …”].
2
R. at 80.
3
R. at 89.
4
R. at 37.
5
R. at 18–19, Emp.’s Ex. 1.
6
Id.
7
Id.
8
R. at 34.
9
R. at 83–85.
10
R. at 84.
11
R. at 44–45, 88–89

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role, as a home health care aid, involved increasing her skill level with a concomitant
pay increase.12 Ms. Barry declined the offer, however, and resigned.13
5. Thereafter, Ms. Barry filed a claim for unemployment benefits. She
initially failed to respond to a Division of Unemployment Insurance (hereinafter, the
“Division”) request for further information.14 As a result, the Division’s claims deputy
based his decision on only the evidence presented by the Agency. The deputy
determined that Ms. Barry had resigned without first exhausting her administrative
remedies with the Employer and was thereby disqualified from unemployment
benefits.15
6. Ms. Barry then appealed the claims deputy’s decision to an appeals referee
(hereinafter, the “Referee”). Both Ms. Barry and the Employer’s representative,
Brianna Henriquez, testified at that hearing. Ms. Henriquez testified that the Agency
suggested that Ms. Barry take a reasonably priced course, at her own expense, which
would then have meant a promotion, a new client, and a pay raise.16 Ms. Barry testified
that she sought treatment immediately after her resignation for substance abuse issues,
however, and declined to take the suggested course or accept the new client.17 Her self-
directed inpatient treatment included an approximately two-month hospitalization.18
Although the Referee recognized the legitimacy of Ms. Barry’s poor working
conditions, she found that (1) Ms. Barry had independently resigned for personal
reasons attributable to her mental and physical health, and (2) that she had not
exhausted all reasonable alternatives before doing so.19 As a result, the Referee

12
R. at 44–45.
13
R. at 88–89.
14
R. at 116.
15
Id.
16
R. at 89.
17
R. at 85.
18
Id.
19
R. at 70.

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affirmed the claims deputy’s decision because Ms. Barry failed to establish by a
preponderance of the evidence that she left her employment for good cause.20
7. Thereafter, Ms. Barry appealed the Referee’s decision to the UIAB.
There, she maintained that she had good cause to resign. To that end, she testified that
she suffered physical abuse in the home and was exposed to other illegal activities.21
She further testified that the Agency failed to identify a supervisor or designate a point
of contact for her to report those problems.22 In response, Ms. Henriquez presented the
“Consumer Direct Program Acknowledgement” form, which contained Ms. Barry’s
written acknowledgement that she understood the terms of her employment.23 Ms.
Henriquez testified that she was “shocked” when Ms. Barry informed her that she was
resigning to get treatment because the Agency had offered to help place her with
another client.24
8. The UIAB found that the issues that arose in the home were not within the
Employer’s control.25 Additionally, the Board determined that Ms. Barry resigned to
pursue personal medical and mental health treatment and that she failed to exhaust all
reasonable alternatives with the Employer before she resigned. That is, she refused to
take a class identified by the Agency that would have qualified her to work as a home
health care aid and to be placed with another client at increased pay. Accordingly, the
Board found Ms. Barry to be disqualified from unemployment benefits because she
voluntarily left her employment without good cause.

20
Id. at 68.
21
R. at 25, 45.
22
R. at 25
23
R. at 32–33.
24
R. at 39.
25
R. at 8.

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9. Presently, Ms. Barry appeals the UIAB’s decision.26 She contends on
appeal that: (1) the Agency did not appropriately intervene when she suffered abuse at
the hands of her client, and (2) she had exhausted all reasonable alternatives before
leaving the Agency.27
10. In an appeal of a UIAB decision, the Court must review the record to
determine whether substantial evidence supported the Board’s decision and whether
the Board committed legal error.28 Substantial evidence refers to relevant evidence that
“a reasonable mind might accept as adequate to support a conclusion.”29 It is more
than a scintilla of evidence but less than a preponderance.30 The Court must consider
the facts in the light most favorable to the prevailing party below when performing its
review.31 It cannot make its own factual findings or assess witness credibility.32
Rather, it reviews the record only for legal errors and to assess whether the UIAB’s
findings are supported by the record.33 At a higher level, the Court must uphold the
decision of the UIAB unless the UIAB acted arbitrarily or capriciously, or its decision
exceeded the bounds of reason.34
11. The Court must also consider the substantive standard applied by the
UIAB when determining whether substantial evidence supported the UIAB’s decision.
Subsection 3314(1) of Title 19 of the Delaware Code disqualifies an employer from
receiving unemployment benefits if he or she voluntarily left his or her job without

26
Notice of Appeal (D.I. 1).
27
Opening Br. at 1–2 (D.I. 9).
28
Unemployment Ins. Appeal Bd. Of Dept. of Labor v. Duncan, 337 A.2d 308, 309 (Del. 1975);
Thompson v. Christiana Care Health Sys., 25 A.3d 778, 781–82 (Del. 2011).
29
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S.
607, 620 (1966)).
30
Noel-Liszkiewicz v. La-Z-Boy, 68 A.3d 188, 191 (Del. 2013).
31
Pochvatilla v. U.S. Postal Serv., 1997 WL 524062, at *2 (Del. Super. June 9, 1997).
32
Sokoloff v. Bd. of Med. Prac., 2010 WL 5550692, at *5 (Del. Super. Aug. 25, 2010).
33
Levitt v. Bouvier, 287 A.2d 671, 673 (Del. 1972).
34
PAL of Wilmington v. Graham, 2008 WL 2582986, at *4 (Del. Super. June 18, 2008).

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good cause attributable to the work. The employee bears the burden of proving good
cause by a preponderance of the evidence.35 The Delaware Supreme Court has
elaborated on what provides an employee good cause to leave – namely, reasons that
are within the employer’s control that would compel any reasonably prudent employee
to leave.36 The employee must also exhaust all reasonable alternatives before
resigning.37 As a final benchmark, an unpleasant work environment does not alone
constitute good cause to resign.38
12. Here, Ms. Barry alleges no error of law. Rather, she contends that the
record below demonstrated that she had good cause to resign. She also asserts that she
was forced to resign because of circumstances within the Employer’s control.39
13. In support, Ms. Barry first proffers that the Agency’s nurse visited too
infrequently and failed to monitor her client’s decline in health, which contributed to
the untenable working conditions.40 On the contrary, the record demonstrates that a
nurse visited the home approximately every two weeks and completed a supervisory
visit form for each visit.41 The nurse also advised Ms. Barry, on one occasion, to call
the police regarding the alleged criminal activity in the home and the alleged abuse by
the client.42 Taken together, these facts constituted substantial evidence from which
the Board could conclude that the nurse’s allegedly deficient conduct did not make Ms.
Barry’s working conditions untenable.

35
Briddell v. Dart First State, 2002 WL 499437, at *3 (Del. Super. Mar. 28, 2002) (citing Petty v.
Univ. of Delaware, 450 A.2d 392, 395 (Del. 1982)).
36
Thompson v. Christiana Care Health Sys., 25 A.3d 778, 783 (Del. 2011).
37
Id.
38
Id.
39
D.I. 9 at 1–2.
40
Reply Br. (D.I. 15).
41
R. at 34.
42
R. at 34.

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14. Ms. Barry next contends that the Employer failed to designate a point of
contact for seeking help. She also contends that the Employer declined to address the
matter when she eventually reported it. The record, however, contains no evidence
regarding what action, if any, Ms. Barry requested the Employer to take. To the
contrary, the record supports the Board’s finding that the Employer took reasonable
action where the employment relationship centered on live-in services for only one
client. Namely, the Agency’s role was limited to facilitating financial and
administrative matters and providing skilled nursing services. Again, Ms. Barry
brought the client to the Agency through the Medicaid Consumer Directed Care
Program and the client was Ms. Barry’s direct supervisor.43
15. Lastly, Ms. Barry contends that she exhausted all reasonable alternatives
before she resigned. The record adequately supports the Board’s findings that she did
not. Namely, Ms. Barry spoke with both Ms. Henriquez and the visiting nurse, and
when she notified them, the Agency provided Ms. Barry the option of continued
employment with a new client.44 The Agency was under no obligation under the
employment relationship to provide her a new client or a pay increase.45 Nevertheless,
it attempted to do both. Because Ms. Barry undisputedly declined the offer, the Board
justifiably determined that she failed to exhaust all reasonable alternatives.
16. On balance, the record contains evidence sufficient for a reasonable mind
to conclude that Ms. Barry voluntarily resigned from her employment without good
cause. The record also supports the UIAB’s finding that the Agency had no control
over an unpleasant working environment caused by a client who Ms. Barry brought
with her to the Agency. Substantial evidence supported the Board’s decision, and

43
R. at 18–19, Emp.’s Ex. 1.
44
R. at 88–89.
45
Id.

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because there was no error of law alleged or apparent on the record, the Board’s
decision must be upheld.
WHEREFORE, the decision of the Unemployment Insurance Appeal Board is
AFFIRMED for the reasons explained above.
IT IS SO ORDERED.

/s/Jeffrey J Clark
Resident Judge

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